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The Often Overlooked Notice Defense in Virginia.

Scott C. Ford, Chair, Workers' Compensation Practice Group

I am often asked whether the notice defense is a viable defense in Virginia. The answer is absolutely, yes. However, it requires an understanding by the claims examiner of the law on this topic.

The notice requirements for an accident claim are set forth in Virginia Code § 65.2-600 and for a disease claim set forth in Virginia Code § 65.2-405.

§ 65.2-600 requires that an injured worker provide notice to his or her employer within 30 days of the accident. The notice is required to state the name and address of the employee, the time and place of the accident, and the nature and cause of the accident as well as the injury. Benefits under the Act shall be barred if notice is not provided as required. Further, it should be noted that an injured worker is not entitled to physician’s fees nor to any compensation which may have accrued under the terms of the Act prior to the providing of notice of an accident.

Virginia Code § 65.2-405 requires that an injured worker within 60 days after a diagnosis of an occupational disease provides notice to his or her employer. However, in the case of occupational disease, failure to give notice will not deprive the claimant of benefits under the Act unless it can be shown that such failure resulted in clear prejudice to the employer.

The recent Opinion from the Full Commission in Cudjoe v. Walmart, JCN VA00000924804 (November 12, 2015) demonstrates the viability of the notice defense in Virginia. In Cudjoe, claimant sustained a work accident on May 14, 2014. The employer and carrier agreed to injuries to the left ankle, left hip and left shoulder; however, disputed the claim for injury to the left knee based upon failure to provide appropriate notice pursuant to Virginia Code § 65.2-600. The Full Commission affirmed the finding of the Deputy Commissioner that benefits under the Act were barred related to the left knee for failure to provide appropriate notice pursuant to Virginia Code § 65.2-600. The claimant testified that the first time she knew of her left knee injury was at the time of an MRI in November 2014. She went on to testify she had never told the employer about her injury until she filed her Claim for Benefits on March 10, 2015. Medical records submitted to the Commission revealed claimant had complained on July 9, 2014 of left knee numbness. The claimant also provided testimony that she never mentioned a specific injury to her left knee until after she saw a physician in September 2014. The Full Commission affirmed the finding that the claim for the left knee was barred due to failure to provide notice pursuant to Virginia Code § 65.2-600. The Full Commission also affirmed the finding that claimant had not provided reasonable justification for her failure to provide timely notice of the left knee injury sufficient to shift the burden to the employer to demonstrate prejudice.

The following takeaways are offered to adjusters when taking recorded statements of injured workers related to the topic of notice:

1. Establish from the injured worker the first date that notice of accident and/or occupational disease was provided.

2. Establish to whom notice was provided.

3. Establish each and every injury that was communicated to the employer, as well as the cause of the accident communicated to the employer.

4. If notice was not timely provided, establish from the claimant each and every reason for their delay. If possible, attempt to establish from the injured worker that, (a) they believed that they had sustained injury, (b) their injury was not trivial, (c) they were aware of the obligation to promptly report accidents/diseases, and (d) they have no justification for the delay in reporting.

For more information on the ruling referenced above, please see:
Georgina Cudjoe v. Walmart Associates Inc (JCN VA00000924804, November 12, 2015)


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1111 East Main Street, Suite 2100 • 

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Richmond, Virginia

23218-0796  • Call: 1.800.442.6672 • 

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